Employer Defeated in Tripple Whammy – Fidessa Plc v Lancaster

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In the January 2017 case of Fidessa Plc v Lancaster, Fidessa lost its appeal against findings of unfair dismissal, indirect sex discrimination and breach of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTW Regulations”) in favour of Ms Lancaster.

The facts of this case can be summarised as follows:

Ms Lancaster, whilst on a period of maternity leave, made a flexible working application. She returned to work, following a period of annual leave which she tacked on to the end of her maternity leave, for 4 days a week leaving work at 5pm in order to be able to get back in time to collect her daughter from nursery. She was, however, able to perform “deletions” (part of her job) remotely from home and this was something she had been allowed to do by her line manager, but which was subsequently refused by her line manager’s direct report, when the line manager was away. This refusal was the basis for Ms Lancaster’s claim of detrimental treatment by reason of being a part-time worker.

She then became pregnant again. Following the announcement of this pregnancy, Fidessa decided to amalgamate two roles (currently performed by Ms Lancaster’s colleagues) and create a new role similar to Ms Lancaster’s but with a requirement that an aspect of the job be done after 5pm in the office and not remotely. The three members of the team were invited to apply for this new role. Ms Lancaster did not apply, primarily because of the requirement to work beyond 5pm. There was no other suitable vacancy so Ms Lancaster was made redundant.
She then pursued claims of unfair dismissal, direct and indirect sex discrimination and less favourable treatment under the PTW Regulations. She succeeded on all counts but Fidessa appealed. The EAT remitted the matter of direct discrimination back to the tribunal but upheld all the other findings.

Lessons to be learned by employers:

Regulation 4 of the PTW Regulations precludes a comparison with a working arrangement which is more than 12 months old. However, a woman who takes 12 months’ maternity leave and then takes annual leave before returning to work in a newly created part-time role can still claim less favourable treatment on the basis of a comparison between her new part-time role and her previous full-time one. This is because annual leave does not count as a period of absence.

A requirement to undertake work outside of normal working hours and to do so at the workplace rather than at home is a two-fold provision, criterion or practice (“PCP”) which is more likely to disadvantage women than men given women tend still to be the primary care-givers. If implementing such a PCP (or something similar), therefore, employers must ensure that these are a proportionate means of achieving a legitimate aim. In this case, it was found that the work could be done remotely and the impact on the business of allowing remote working would have been far less than the impact on Ms Lancaster of refusing it. The impact on her was that she lost her job.

When designing new roles during a business reorganisation, consideration must be given to the impact on part-time workers and other groups with protected characteristics who may be impacted. Failing to design an alternative role which took account of Ms Lancaster’s existing flexibility in this case amounted to a PCP which was indirectly discriminatory and led to her redundancy dismissal being found to be unfair. This was the case even though Ms Lancaster didn’t apply for the role.